Architects - Construction Contracts - page 106

cannot bring an action against the architect in contract, because they have no contract with
the architect. However, they can bring an action against the architect in tort on the basis
of the certificates. Without the certificates, an action against the architect in tort for negli-
gence would be very difficult to sustain.
The basis for the action is an old case called Hedley Byrne & Co Ltd v Heller & Part-
ners. 16 Put very simply, if a professional person gives advice to a person or class of person
knowing that the advice will be relied on, and if the person receiving the advice does rely
upon it and as a result suffers loss, the professional will be liable for such loss. In a recent
case, 17 tenants leased flats in a block of flats. Architects were employed by the developer
for the purpose of inspecting the work and certifying that each flat had been properly con-
structed in general compliance with the drawings. When defects subsequently appeared in
the building, the tenants sued the developer and the architects. The court held that the ar-
chitects could be liable in two ways:

•
•

In tort for negligent misstatement.
In contract.

However, the decision was overturned by the Court of Appeal which held that the certific-
ates (in all but two cases) had been issued by the architects after the purchasers had agreed
to purchase. Therefore, the purchasers had not relied on the architects' certificates when
deciding to purchase, because the certificates did not then exist. Moreover, there was no
contractual relationship between the architects and the purchasers and the certificates did
not amount to warranties.
Architects should refuse to give such certificates if not legally obliged to do so. If an ar-
chitect does agree to give such a certificate, a substantial additional fee is indicated.